Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 1 of 13 PageID 3223

UNITED STATE DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMP A DIVISION

LUIS A. GARCIA SAZ and Wife,

MARIA DEL ROCIO BURGOS
GARDIA,
Plaintiffs,
CASE NO: 8:13-CV-220-T27 TBM
vs.
CHRUCH OF SCIENTOLOGY
RELIGIOUS TRUST, et al. ,
Defendants.

--~----------------------/
PLAINTIFFS' BENCH MEMORANDUM

Plaintiffs, LUIS A. GARCIA SAZ and MARIA DEL ROCIO BURGOS GARCIA, by
and through their undersigned attorneys, respectfully file this Bench Memorandum in Opposition
to Defendants' Motion to Compel Arbitration.
I. PRELIMINARY STATEMENT

The evidence shows that there are no procedures for conducting arbitration and that the
rules of the Committee of Evidence cannot apply to arbitration. This arbitration is, therefore,
procedurally unconscionable.
An arbitration by a declared person, such as the Garcias, before a panel of three
Scientologists in good standing cannot possibly be fair because of the policies of the Church of
Scientology, which make such procedures inherently unfair. The arbitration procedure is,
therefore, substantively unconscionable.

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 2 of 13 PageID 3224

Contrary to Defendants' belief, this Court - not the Church - must decide the initial
question of arbitrability. See Riley Manufacturing Co., Inc. v. Anchor Glass Container Corp. ,
157 F.3d 775, 779 (1Oth Cir. 1998). Indeed, Defendants' motion to compel arbitration cannot be
won by prohibiting the Court from exercising its inherent power to decide its own jurisdiction.
II. LEGAL MEMORANDUM

On October 17, 20 13, this Court ordered the Defendants to provide proof that there were
existing written procedures governing Scientology arbitration. [DE 89] On October 24, 2013,
Defendants filed a response that "The Church of Scientology International Justice Chief (IJC)
has ruled that the procedures and rules governing the Committee of Evidence apply in arbitration
proceedings." [emphasis added] [DE 91]
That statement was simply untrue.
On September 24, 2014, this Court entered an Order requiring Defendants to provide
evidence that the Chief Justice had ruled that the Committee of Evidence rules applied to
arbitration. [DE 131]
Defendants filed a sworn declaration of Mike Ellis which did not tell the Court how or
when he had ruled a year earlier that the rules of the Committee of Evidence applied to
arbitration. Instead, Ellis indicated that he had recently received a request for arbitration. [DE
132] That is not the same point.
It is undisputed that there has never been a single arbitration in the history of the Church.
It is also undisputed that this was the first request for arbitration that had ever been made. [Ellis

39: 19]
Plaintiffs requested every document that surrounded the recent request for arbitration and
were provided with a redacted letter of September 30, 2014, written six days after this Court's

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 3 of 13 PageID 3225

Order requiring that the Defendants provide evidence of the alleged ruling by the International
Justice Chief a year earlier.
In the deposition of Mike Ellis, the International Justice Chief who filed the Declaration
insisted he could not remember any of the facts surrounding the recent request for arbitration
other than the fact that the person requesting arbitration was a Scientologist. (Ellis 55 :20, 58:9,
60:9, 61:5) When presented with an unredacted copy of the September 30, 2014letter written to
Mr. Jonathan Ramsay, who is not a Scientologist, Ellis recanted his testimony to avoid
prosecution for perjury. (Ellis 69:2)
The true facts are that Mr. Ramsay has never been a Scientologist and was requesting the
return of$17,000.00 that his father had paid to take Scientology courses which were never taken
because his father died prior to being able to take those courses. (Ellis 75:20) Defendants failed
to provide the documents that showed they had denied Mr. Ramsay' s claim in May 2013 , and
that they never contacted him until three days after this Court's September Order. At that time,
he received an unsolicited request for his physical address so that the IJC could send the letter in
question. (Ellis 92: 17)
In his deposition, Mr. Ellis claimed that the prior ruling referred to in Defendants'
response related to a casual conversation he had had with a person who asked him out of
curiosity what rules applied to arbitration and he responded that the rules of the Committee of
Evidence applied. (Ellis 46:8) There is no record of any kind concerning that conversation and
the Defendants have failed to call the only witness who could confirm it. (Ellis 200: 19) Mr. Ellis
never mentioned this supposed ruling in his declaration even though it was filed by the
Defendants to attempt to comply with this Court' s Order of September 24, 2014, requiring
Defendants to provide all evidence that he had ruled on this issue. It is patently obvious that the

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 4 of 13 PageID 3226

Defendants have attempted to create an illusion in order to back up the false statement they made
to this Court that the IJC had ruled that the Committee of Evidence Rules applied to arbitration.
The enrollment agreement itself specifically says that the rules that apply to arbitration
are only the procedure that is set forth in the agreement. The enrollment agreement states in
paragraph 6(e):
Any dispute, claim or controversy which still remains unresolved after
review by the IJC shall be submitted to binding religious arbitration in
accordance with the arbitration procedures of Church of Scientology
International, which provide that: ... . [emphasis added]
There is absolutely no mention of the rules of the Committee of Evidence. Defendants' attempt
to apply the rules ofthe Committee of Evidence to arbitration is unavailing.
Under the enrollment agreement, it is clear that: (i) the arbitration procedure is binding,
(ii) there are three members chosen by the parties, and (iii) there is no appeal or approval
necessary. (Ellis 106:20- 136:6).
Under the Rules of Committee of Evidence, the finding is only a recommendation and is
not final until approved by an employee of Scientology, there are four to six members, including
a chairman, who doesn't vote unless there is a deadlock, the members are chosen by an employee
of Scientology and the parties cannot object to the membership. The Committee of Evidence
only deals with offenses and their only findings can only be guilty, not guilty, or a mitigation of
sentence. The findings are reviewable through several layers of hierarchy. (Ellis 106:20 - 136:6).
Defendants' premise in their brief is that the Committee of Evidence rules state, "This
system is for use in all matters of justice in Scientology." (Defendants' brief, Page 2). They fail
to tell the Court that the word "justice" is defined in the book "Introduction to Scientology
Ethics" which Mr. Ellis swore in his declaration that: "5. The ecclesiastical justice procedures of
the Church of Scientology are understood by all members of the religion to have been set down

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 5 of 13 PageID 3227

as policy by the Founder, L. Ron Hubbard and are contained in the book, INTRODUCTION TO
SCIENTOLOGY ETHICS."
That book defines justice as "When the individual fails to put in his own ethics, the group
takes action against him and that is called justice." The rules of the Committee of Evidence and
the procedure in the enrollment agreement are polar opposites so that the Committee of Evidence
rules cannot possibly apply to arbitration. There simply are no rules and no way that an
arbitration could be conducted.
A person who has been declared suppressive, like the Garcias, has no chance of
convincing three Scientologists in good standing that they should prevail against the Church.
The deposition of Mr. Ellis, as well as other witnesses to be called by the Plaintiffs, shows that
all three arbitrators, because they are Scientologists in good standing, would have to believe that
the Garcias are guilty of a high crime, are not able to do the prerequisites to arbitration, have no
rights under Scientology, cannot believe a word the Garcias say, believe that the Garcias are
psychotic or are like Communists, Fascists or criminals, and would themselves be subject to excommunication if they found against the Church. (Ellis 195:8).

Under no stretch of the

imagination could three Scientologists in good standing be fair or impartial and the procedure is
substantively unconscionable.
While the agreement purports to bind the Garcias, there is nothing in it which binds
Scientology. In fact, their policies specifically provide that Scientology retains the right to sue
the Garcias notwithstanding the arbitration agreement. (Ellis 189: 18).
Defendants spend much of their brief attempting to impeach Mike Rinder on an irrelevant
subject, i.e., whether Mike Rinder was responsible for creating the arbitration clause in the
enrollment agreement. Long ago Plaintiffs told defense counsel that the issue of the intent of the

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 6 of 13 PageID 3228

Church in drafting the arbitration agreement is completely irrelevant and that there is no
intention to call Mr. Rinder on that subject. In fact, Mr. Rinder, during the course of his
employment with the Church, was the head of the Church's world-wide legal matters for more
than 20 years. (Affidavit of Michael Rinder,

4; DE 133). He could testify about conversations

he had with Mr. Drescher about the intent of the arbitration agreement and that it was considered
as a joke with no intention that it be enforceable. (Depo. of Mike Rinder, Page 67:21; 70:11 ).
However, the plain fact is that this is entirely irrelevant. If the intent of the Church was that the
arbitration be fair but, it turns out that it is completely unconscionable both procedurally and
substantively, than it is unenforceable regardless of the Church's intent. On the other hand, if the
Church's intent was nefarious but they provided rules for the arbitration's implementation, and
the arbitrators were impartial and neutral, than the arbitration agreement would be enforceable
notwithstanding the Church's intent.
Defendants spend much of their memorandum discussing first amendment principles yet
their motion to compel arbitration states that they are not seeking a ruling on First Amendment
issues at this time. Whether the Complaint states a proper cause of action for return of funds
solicited by false and misleading practices and whether the First Amendment protections apply
are irrelevant distractions on this motion as neither are currently before the Court. Defendants
attempt to tum this dispute into a First Amendment battle but the Defendants cannot cite to a
single case that says the First Amendment prohibits this Court from judging whether arbitration
is unconscionable.
Much of Defendants' brief relates to Mr. Garcia's understanding of the Scientology
ethics and justice system and specifically the rules of the Committee of Evidence and that Mr.
Garcia must have known what he was signing. The problem is that what he was signing had

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 7 of 13 PageID 3229

absolutely nothing to do with the Committee of Evidence or the Scientology ethics and justice
system procedures. The enrollment applications were just that, applications for enrollment in
Scientology courses. The very purpose of those agreements was for Plaintiffs to receive specific
religious services. Plaintiffs are not seeking the return of the funds paid for those services. This
is a claim for fraud, violations of Florida Deceptive and Unfair Trade Practices Act, and breach
of contract for failure to return deposits for advanced religious services. Defendants' entire
argument depends upon this Court finding that, by signing the enrollment agreement, Plaintiffs
not only agreed to arbitration concerning the subject of the contract but also that they gave up
their rights to sue for any other claim they might have against the Church regardless of how
remote from the subject matter of the contract. To hold that would require Plaintiffs to arbitrate
under a "kangaroo court" - everything from being run over by a Church-owned vehicle to being
defrauded of their life savings by an official of the Scientology Church. Mr. Garcia knew about
the Committee of Evidence, but he also knew, what this Court now knows, that those rules had
absolutely nothing to do with arbitration or the enrollment agreement that he was signing.
There was absolutely no way for Mr. Garcia to know that the Committee of Evidence
applied to arbitration. The Committee of Evidence Rules are as far from the arbitration procedure
in the enrollment agreement as they could possibly be.
Defendants, on page 17 of their brief, cite a number of Florida cases that hold that an
arbitration provision must be "definite enough that the parties at least have some idea as to
whether particular matters are to be submitted to arbitration and set forth some procedure by
which arbitration is to be effected." That is the problem for the Defendants. There simply are no
procedures by which this arbitration could be effected. Defendants cite Intracoastal Venture

Corp. v Safeco Ins. Co. of America, 540 So. 2d 162 (Fla. 4th DCA 1989), where the Court

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 8 of 13 PageID 3230

approved an agreement which provided for selecting three independent appraisers and had a
further provision for an umpire. That is the problem for the Defendant. The arbitrators in this
agreement are hardly independent. Defendants have not even made a credible argument that
someone who has the beliefs which even Mr. Ellis admits they would have could possibly be fair
for the purpose of arbitration. (Ellis 157: 17). These arbitrators could not possibly be fair to
someone who has been declared a suppressive by the Church. They could have no contact with
the Garcias, could give no credence to what they say, would face excommunication if they sat in
judgment of Scientology, believe that the Garcias are an enemy of everything they believe in and
are psychotic and have no rights. (Ellis 199:2).
The theory of Defendants is that notwithstanding those beliefs, because another doctrine
of the Church requires that the arbitrators would have to be fair and that they simply would be
fair. (!d.) That doesn ' t make sense. That would be like saying that a juror who holds strong
feelings against a particular race or has an interest in the outcome of the case could still sit in
judgment if the Judge instructs them to be fair. The heart of arbitration is that arbitrators have to
be neutral and unbiased. That cannot possibly be the case here and that is what is wrong with
this procedure. If the Church of Scientology wanted to have a fair arbitration, they could have
easily done so. They could have provided for rules of arbitration pursuant to the American
Arbitration Association or any of a myriad of other arbitration organizations and they could have
provided that the arbitrators would be chosen by that association or any other independent
means. Instead, they devised a procedure that they had to know was completely and totally unfair
and would make it impossible for someone like the Garcias to be successful and didn't even
provide a hint as to how the proceedings would take place.

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 9 of 13 PageID 3231

Both parties have amply briefed the legal issues before this Court on both procedural and
substantive unconscionability. While Defendants at the status conference indicated an interest in
providing a short bench memo of a couple of pages, the 25 page tome that they have filed has
chosen to re-argue the same issues as previously briefed with similar, if not identical, citations.
Defendants make the statement on page 19 of their brief that "without the agreements and
the Scientology policy upon which they are based, Plaintiffs would have no basis to request a
return of donations." Defendants are mistaken. Plaintiffs are not basing their claim in any way
upon the enrollment agreement. Plaintiffs' claims are for fraud, violations of Florida Deceptive
& Unfair Trade practice Act, and breach of contract for failure to return deposits for advanced

religious services. Nothing in the enrollment agreement relates to these claims, and nothing in
the enrollment agreement is connected to those claims.
Contrary to Defendants' assertion on page 20 of their brief, this Court could well
conclude that "no man in his senses and not under delusion" would make an agreement whereby
they give up every possible civil remedy totally unrelated to the enrollment agreement to be
decided by three people who cannot believe them and have the strongest possible personal
objection to their claims.
The testimony of Mr. Ellis can be summed up at page 182, Line 8:
Question:
Okay. So to sum things up, the way you view it is that an
arbitrator prior to the arbitration could be a Scientologist for many years
and could hold all of the beliefs that we've just gone through, that
suppressive people are psychotic, suppressive people are not to be
believed, that you can't adhere to them, you can't even speak to themthey could hold all those views, But by -but because they are instructed to
be fair, They can be fair?
Answer:

Yes, because that's part of it.

Question:

That's your positon?

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 10 of 13 PageID 3232

Answer:

Yes.

"No man in his senses and not under delusion" would think that an arbitration system
dependent upon arbitrators who hold those beliefs could possibly be anything but
unconscionable.
The difference between Mr. Ellis' testimony concerning Scientologists who have been
wrongly declared suppressive being judged by a Committee of Evidence designed for the very
purpose of determining whether a punishment that results in that suppressive declaration is just
or not, is completely different than someone who has publicly departed the Church, has been
determined to be suppressive, and is not trying to stay in the Church but rather is suing the
Church for fraud.
Defendants' belief that arbitrability is somehow immunized from Article III scrutiny
because that question implicates religious doctrine further illuminates the inherent bias in the
arbitration process that Defendants have crafted. Arbitration, at its core, is an agreement between
the parties to resolve their dispute in an alternative forum that ensures the same fairness and
impartiality as a court of law. By declaring the arbitration process an extension of Church
doctrine and thus beyond this Court' s review, Defendants in essence concede the interlocking
nature of the message and the messenger such that the very nature of the arbitration process as
designed by Defendants cannot be separated from Church doctrine and thus is not impartial. But
conflating arbitration procedures with internal organization, or ecclesiastical rule, custom, or law
does not change the fact that the issue of arbitrability falls under the Court's inherent authority to
decide neutral questions such as its own jurisdiction. Whether the arbitration agreement should to
be enforced against Plaintiffs in this case implicates their secular legal rights. Jones v. Wolf, 443
U.S. 595 (1979) (a court can and should apply neutral principles of law to determine disputed

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 11 of 13 PageID 3233

questions that do not implicate religious doctrine); Encore Productions, Inc. v. Promise Keepers,
53 F. Supp. 2d 1101, 1112 (D. Colo. 1999) (district courts have the power to enforce secular
rights, despite the fact that one of the contracting parties may base their rights on religious
affiliations).
Having a case heard before three Scientologists who are not just loyal to the Church but
whose very continued participation in the Church is threatened if they should find for the
suppressed claimant, is completely different. Nobody, least of all the Plaintiffs, are trying to tell
the Church how to handle the issue of whether someone should be declared suppressive or not,
or whether someone should have a certain punishment or not. That is the purpose behind a
Committee of Evidence and it is completely irrelevant to the issues in arbitration. This is
precisely why those rules cannot possibly apply to arbitration and why hearings of the
Committee of Evidence and their decisions as to whether someone should be suppressive or not
are completely foreign to the questions raised in arbitration.
III. CONCLUSION

For all of the foregoing reasons, the Garcias respectfully request that the Court deny
Defendants' Motion to Compel Arbitration and permit a trial by jury on Plaintiffs' claims.

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 12 of 13 PageID 3234

Dated: February 16, 2015

Respectfully submitted,

s/ Amanda M McGovern
Ronald P. Weil, Esq.
Florida Bar No: 169966
Amanda M. McGovern
Florida Bar No.: 964263
P.A.
Southeast Financial Center, Suite 900
200 South Biscayne Boulevard
Miami, FL 33131
T: 305.372.53521 F: 305.372.5355
rpw@wqmlaw.net
amcgovern@wqmlaw.net
WElL QuARANTA McGovERN,

-andTheodore Babbitt, Esq.

Florida Bar No: 091146
BABBITT JOHNSON OSBORNE

&

P.A.
1641 Worthington Road, Suite 100
West Palm Beach, FL 3 3409
T: 561.684.2500 IF: 561.684.6308
tedbabbitt@babbitt-johnson.com

LECLAINCHE,

Counsel for Plaintiffs Luis A. Garcia Saz and

Maria Del Rocio Burgos Garcia

Case 8:13-cv-00220-JDW-TBM Document 170 Filed 02/16/15 Page 13 of 13 PageID 3235

CERTIFICATE OF SERVICE
We hereby certify that, on February 16, 2015, we electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. We also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified below in
the manner specified, either via transmission of Notices of Electronic Filing generated by
CM/ECF or in some other authorized manner for those counsel or parties who are not authorized
to receive electronically Notices of Electronic Filings.

F. Wallace Pope, Jr., Esq.

FBN 124449
Johnson, Pope, Bokor, Ruppel
& Bums, LLP
P.O. Box 1368
Clearwater, FL 33757
Phone: (727) 461-1818
Fax: (727) 462-0365
E-mail: wallyp@ipfirm.com
Counsel for Defendants

Marie Tomassi, Esq.

FBN 772062
Trenam Kember Scharf Barkin Frye,
O'Neill & Mullis, P.A.
Bank of America Building
200 Central Avenue, Suite 1600
St. Petersburg, FL 33701
Phone: (727) 820-3952
Fax: (727) 820-3972
E-mail: mtomassi@trenam.com
Counsel for !AS Administrations, Inc.
and US. !AS Members Trust

Nathan M. Berman, Esq.

FBN 329230
E-mail: nberman@zuckerman.com
Lee Fugate, Esq.
FBN 170928
E-mail: lfugate@zuckerman.com
Jack E. Fernandez, Esq.
FBN 843751
E-mail: jfemandez@zuckerman.com
Mamie V. Wise, Esq.
FBN 65570
E-mail: mwise@zuckerman.com
Zuckerman Spaeder LLP
101 E. Kennedy Blvd., Suite 1200
Tampa, FL 33602
Phone: (813) 221-1010
Fax: (813) 223-7961
Counsel for Church of Scientology Religious Trust